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Uganda v Etudebo & Ors (Criminal Mitigation Session No.0066 of 2015) [2015] UGHCCRD 457 (15 September 2015)
- Citation
- [2015] UGHCCRD 457
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- HC: Criminal Division (Uganda)
- Panel
- Murangira, J
- Case number
- Criminal Mitigation Session No.0066 of 2015
- Language
- English
More details
- Court
- HC: Criminal Division (Uganda)
- Panel
- Murangira, J
- Case number
- Criminal Mitigation Session No.0066 of 2015
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court determined that, although the convicts were originally sentenced to death for murder, the Supreme Court's decision in Attorney General v. Susan Kigula & 417 Others rendered the mandatory death sentence unconstitutional, requiring individualized sentencing with consideration of mitigating factors. The court considered the gravity and brutality of the offence, the planning involved, the impact on the victim's family, and the increase in murder cases in Uganda as aggravating factors. Mitigating factors included the convicts' youthful age, time already spent on remand, and any personal circumstances presented by the defence. Applying the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, the court found that the death sentence was not appropriate and instead imposed a sentence of 48 years' imprisonment for each convict, deducting the period already served on remand and since conviction. The sentence was to run from the date of conviction, 3rd July 2002.
Court disposition
Each convict sentenced to 48 years' imprisonment from the date of conviction, with time already served deducted.
Orders
- Each convict is sentenced to 48 years' imprisonment from 3rd July, 2002.
- The period of 13 years already served in prison is to be deducted from the sentence.
02
Material facts
Parties
Uganda
Applicant Counsel: Ms. Barbra MasindeEtudebo James & 3 Others
Respondent Counsel: Mr. Senkeezi StephenAmounts and remedies
- Sentence Imposed Years: 48
- Time Served Years: 13
03
Procedural history
Posture
Criminal Mitigation / Mitigation and Sentencing After Remittal
04
Questions and positions
Legal issues
- 01
Whether the death sentence remains appropriate for the convicts after remittal for mitigation and sentencing.
- 02
What is the appropriate sentence for each convict considering the mitigating and aggravating factors.
Party arguments
- Applicant
- The prosecution, represented by Ms. Barbra Masinde, presented mitigating factors to the court, including the gravity of the offence, the planning and brutality involved, and the impact on the victim and his family. The prosecution also referenced the sentencing guidelines and the increase of murder cases in Uganda, arguing for a sentence commensurate with the seriousness of the crime.
- Respondent
- Counsel for the convicts, Mr. Senkeezi Stephen, presented mitigating factors on behalf of each convict, including their youthful age, time already spent on remand, and any other personal circumstances that could warrant a reduction from the maximum sentence. The defence argued that the death penalty may not be appropriate in light of these factors and recent legal developments.
05
Court’s reasoning
Legal principles
- 01
Kyalimpa Edward v. Uganda, Criminal Appeal No. 10 of 1995; R v. De Havingland [1983] Cr. App. R (s) 109
The sentencing judge must exercise discretion based on the facts of each case, considering both mitigating and aggravating factors.
- 02
Legal Notice No.8 of 2013, PART VI, paragraphs 17, 18, 19, and 21
The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, provide a sentencing range for capital offences and require consideration of factors such as youthful age and time spent on remand.
- 03
Attorney General v. Susan Kigula & 417 Others, Constitutional Appeal No. 3 of 2006; Amba Jacob & Another v. Uganda, Criminal Appeal No. 10 of 2009
The mandatory death sentence for murder is unconstitutional, and courts must conduct mitigation before sentencing.
06
Ratio, limits and disposition
Ratio decidendi
The court determined that, although the convicts were originally sentenced to death for murder, the Supreme Court's decision in Attorney General v. Susan Kigula & 417 Others rendered the mandatory death sentence unconstitutional, requiring individualized sentencing with consideration of mitigating factors. The court considered the gravity and brutality of the offence, the planning involved, the impact on the victim's family, and the increase in murder cases in Uganda as aggravating factors. Mitigating factors included the convicts' youthful age, time already spent on remand, and any personal circumstances presented by the defence. Applying the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, the court found that the death sentence was not appropriate and instead imposed a sentence of 48 years' imprisonment for each convict, deducting the period already served on remand and since conviction. The sentence was to run from the date of conviction, 3rd July 2002.
Obiter and limits
- The offence of murder is on the increase in our society Uganda as a Country.
- Youthful age is defined as age between 18-35 years under the sentencing guidelines.
- Each case presents its own facts upon which a Judge exercises his discretion in sentencing.
Court disposition
Each convict sentenced to 48 years' imprisonment from the date of conviction, with time already served deducted.
- Each convict is sentenced to 48 years' imprisonment from 3rd July, 2002.
- The period of 13 years already served in prison is to be deducted from the sentence.
Source and reliance status
HC: Criminal Division (Uganda)
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
HC: Criminal Division (Uganda)
Judgment
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CRIMINAL MITIGATION SESSION NO.0066 OF 2015
UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PROSECUTION
VERSUS
ETUDEBO JAMES & 3 OTHERS:::::::::::::::::::::::::::::::::::::::::::::::::::CONVICTS
RULING BY HON. MR. JUSTICE JOSEPH MURANGIRA
1. Background facts.
The 4 convicts were charged with murder Contrary to Section 188 and 189 of the Penal code Act, Cap. 120, Laws of Uganda.
The convicts were tried, found guilty, convicted and sentenced to death by the then Hon. Mr. Justice Augustus Kania, at High Court of Uganda sitting at Gulu, on 3rd July, 2002. At that time, the only sentence for murder was to suffer death, see the case of Attorney General –VS- Susan Kigula & 417 other Constitution Appeal No.3 of 2006, and the case of Amba Jacob & Another –VS- Uganda, Criminal Appeal No. 10 of 2009.
The 4 convicts who were subject to the automatic death sentence had not exhausted the appeal process were remitted back to High Court of Uganda, by the Supreme Court of Uganda for mitigation and sentencing.
Therefore, the 4 convicts are before me for mitigation and sentence. The mitigation for sentence was done on 27th August, 2015 by Ms. Barbra Masinde, Senior State Attorney for the prosecution and Mr. Senkeezi Stephen from Senkeezi, Saali Advocates & Legal consultants for the 4 convicts.
1. Sentence for each Convict.
In passing the appropriate sentence on each convict, I have considered the following mitigating factors:-
1. The mitigating factors presented to Court by Counsel for the prosecution.
2. All the mitigating factors presented on each convict by Counsel for the 4 convicts.
3. I note that the maximum sentence to which the convicts are convicted of murder.
4. The case of Kyalimpa Edward –Vs- Uganda, Criminal Appeal No. 10 of 1995 the Supreme Court of Uganda, quoted the case of –R-V- De Havingland [1983] Cr. App. R (s) 109 and held that:-
“As Dunn, L. J. observed in R-VS- Havingland’s case at page 114, an appropriate sentence of the sentencing judge. Each case presents its own facts upon which a Judge exercises his discretion.”
1. The Constitution (sentencing Guidelines for Courts of Judicature) (procedure) Directions, Legal Notice No.8 of 2013, particularly PART VI- sentencing in capital offences, paragraphs, 17,18, 19, and 21.
2. The convicts were convicted of murder, which is a grave offence.
3. From the Court proceedings, and judgment the convicts planned to kill the deceased who was their clan mate. The victim was murdered in cold blood.
4. The deceased was brutally killed by the convicts.
5. The convicts inflicted various deep cut wounds on the victim according to the postmortem report.
6. The convicts also caused injuries on the son of the deceased. Thus in commission of the offence the convicts are convicted of committed another offence of assault against the deceased’s son.
7. The offence of murder is on the increase in our society Uganda as a Country.
8. Accordingly the said sentencing guideline, legal Notice No.8 of 2013 youthful age is defined as age between 18-35 years.
In consideration of all the above mitigating facts, I am of the considered view that the death sentence might not be appropriate in the circumstances. However, I feel each convict must be given a proper deserving sentence appropriate to the offence of murder they committed. I, thus, apply the sentencing range in capital offences as per the Constitution (sentencing guidelines for Courts of Judicature (Practice) Direction, 2013. I would sentence the convicts to fifty, (50) years imprisonment. Considering the period of about 2 years on remand, I sentence each convict to 48 years imprisonment; from the date of conviction, that on 3rd July,2002. Each convict has been in prison of 13 years since the date of their conviction. Thu, in calculating the remaining sentence each convict has already served 13 years.
Dated at Kampala this 15th day of September, 2015.
Joseph Murangira
Judge.
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